There is some news in the capacitor civil litigation concerning the commerce subject to potential damages under the Sherman Act and Foreign Trade Antitrust Improvement Act (FTAIA). With guilty pleas in the Antitrust Division’s ongoing criminal investigation, the main question in the civil litigation for many of the defendants has been “How much is this going to hurt?” As the case moves towards the plaintiffs’ attempt to get class certification, a big chunk of potential commerce has been knocked out—for now.

Back in October 2016, Judge Donato had made preliminary rulings on the applicability of the FTAIA to certain categories of capacitor commerce. See Cartel Capers, Judge Donato Issues FTAIA Order in Capacitors Civil Litigation, and Ben Hancock, The Recorder, In Price Fixing Cases, Two Judges Rule on Reach of US Antitrust Laws, October 3, 2016. In his previous ruling, Judge Donato knocked out a “global pricing theory” for commerce based on purchasers by foreign entities who were invoiced and received their capacitors abroad, but the Court left this type of commerce open for further briefing to allow the plaintiffs to convince him there was a basis to include this commerce in possible damages. Now, the plaintiffs, by stipulation with the defendants, have dropped their efforts to include this commerce. Judge Donato signed the stipulation making his previous ruling a final order allowing the plaintiffs the right to appeal.

Below is a section of the stipulation entered into by the parties and signed by Judge Donato:

WHEREAS, the Phase I Order resolved certain disputes between Defendants and DPPs with respect to three categories of transactions in particular: (1) “Capacitors Billed To Entities In The U.S.”; (2) “Capacitors Billed To Foreign Entities But Shipped To The U.S.”; and (3) “Capacitors Billed And Shipped To A Foreign Entity.” See Phase I Order at 5-11.

WHEREAS, with respect to the category of “Capacitors Billed And Shipped To A Foreign Entity,” the Court held that “the Sherman Act claims of foreign purchasers who were invoiced and received their capacitors abroad are not barred as a matter of law, but they may not allege a claim on the basis of a global pricing theory.” See Phase I Order at 8-11. The Court further ordered a second phase of summary judgment briefing with respect to this category of transactions, after which the Court would “apply these legal determinations to the record and end in a final order on defendants’ requests for summary judgment under the FTAIA.” Id. at 3.

WHEREAS, the Phase I Order resolved certain disputes between Defendants and DPPs with respect to three categories of transactions in particular: (1) “Capacitors Billed To Entities In The U.S.”; (2) “Capacitors Billed To Foreign Entities But Shipped To The U.S.”; and (3) “Capacitors Billed And Shipped To A Foreign Entity.” See Phase I Order at 5-11.

WHEREAS, with respect to the category of “Capacitors Billed And Shipped To A Foreign Entity,” the Court held that “the Sherman Act claims of foreign purchasers who were invoiced and received their capacitors abroad are not barred as a matter of law, but they may not allege a claim on the basis of a global pricing theory.” See Phase I Order at 8-11. The Court further ordered a second phase of summary judgment briefing with respect to this category of transactions, after which the Court would “apply these legal determinations to the record and end in a final order on defendants’ requests for summary judgment under the FTAIA.” Id. at 3.

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the DPPs and the undersigned Defendants, subject to the concurrence of the Court, that:

Upon the Court’s endorsement of this Stipulation and [Proposed] Order, theCourt’s Phase I Order shall constitute a final order with respect to Defendants’ Motion for Summary Judgment with respect to DPPs’ claims of foreign purchasers who were invoiced and received their capacitors outside the United States. Such an order does not affect or limit DPPs’ rights or timing to seek appellate review or Defendants’ rights to oppose any such appellate proceeding.

The Phase II FTAIA briefing schedule for the DPP action, and related hearing date scheduled for March 23, 2017, are hereby vacated with respect to the undersigned Defendants. See Amended Scheduling Order, ECF No. 1405.

The undersigned parties jointly and respectfully request that the Court enter this stipulation as an order.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Dated: January 11, 2017

Honorable James Donato

The full document is available at In re Capacitors Antitrust Litigation, Case No. 14-cv-03264-JD.

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The US Supreme Court has called cartels "the supreme evil of antitrust." Price fixing and bid rigging may not be all that evil as far as supreme evils go, but an individual can get 10 years in jail and corporations can be fined hundreds of millions of dollars. This blog will provide news, insight and analysis of the world of cartels based on the many years my colleagues and I have as former feds with the Antitrust Division, USDOJ.